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Bush Justice and Development in Alaska: Why Legal Process in Village Alaska Has Not Kept up with Changing Social Needs [Revised]

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Bush Justice and Development in Alaska: Why Legal Process in Village Alaska Has Not Kept up with Changing Social Needs [Revised] Scholarworks@UA — UAA Justice Center June 1984 Bush Justice and Development in Alaska: Why Legal Process in Village Alaska Has Not Kept Up with Changing Social Needs [revised] Stephen Conn Suggested citation Conn, Stephen. (1984). "Bush Justice and Development in Alaska: Why Legal Process in Village Alaska Has Not Kept up with Changing Social Needs". Paper presented at the annual meeting of the Western Regional Science Association, Monterey, CA, Feb 1984; revised Jun 1984. (http://hdl.handle.net/11122/9771). Summary This paper analyzes the evolution of the working legal process in the predominantly Alaska Native villages of rural Alaska after Alaska statehood. Replacement of territorial government by highly centralized state justice agencies led to a weakening in the working relationship between formal law and extralegal mechanisms such as the village council. This change coincided with development and other changes which demanded more formal legal presence in villages rather than less. The paper reviews the fate of various bush justice reform efforts made by state agencies and efforts by villages to respond to justice needs. The author suggests that the inadequacy of legal process in village Alaska is not due primarily to language problems or Native confusion about Western law; rather, the "bush justice problem" is caused by a lack of legal planning for development, the state governmental system's lack of accountability to its rural constituency, and a lack of control by villages over the mixture of formal law, extralegal authority and nonlegal social control appropriate to their needs, both present and future. Additional information This manuscript revises a conference paper of the same title; the paper as originally presented can be found at http://hdl.handle.net/11122/9770. A later revision based upon this manuscript was published as "Rural Legal Process and Development in the North" by Stephen Conn. Chap. 10 in Theodore Lane (ed.), Developing America's Northern Frontier, pp. 199–229. Lanham, MD: University Press of America, 1987. UAA is an AA/EO employer and educational institution and prohibits illegal discrimination against any individual: www.alaska.edu/titleIXcompliance/nondiscrimination. RURAL LEGAL PROCESS AND DEVELOPMENT IN THE NORTH: WHY LEGAL PROCESS IN VILLAGE ALASKA HAS NOT KEPT UP WITH CHANGING NEEDS Stephen Conn, Esq. Professor of Justice School of Justice University of Alaska, Anchorage June 1984 ' Predominantly Native villages in Alaska1 have a legal process formed from three essential components: nonlegal social control, extra-legal authority and Western police, judicial, and correctional services. Planners term the delivery of these last-mentioned state services to isolated villages, "bush justice." Many overlook the essential interrelationship between the three components of village legal culture and, in fact, in the development of American legal culture generally. Taken together they form the working legal process in the North. Legal process in village Alaska has not responded to developmental impacts because planners ignore the impact of services provided or denied villages from town-based2 service centers on village legal culture. Villages are denied even elemental authority over their own legal processes formed from these three essential components. To assess the role of state law in meeting the changing needs of village Alaska one must understand a longterm and historic relationship between Eskimo or Indian social control, hybrid forms of village-based extra-legal authority, and town-based personnel who represent state legal process. Given a pervasive absence of reliable data on crime in bush Alaska and a lack of village authority over introduction of state resources, state agencies address the bush from ingrained institutional perspectives. Traditionally, communities on the American frontier have moved from non- legal social control to vigilante justice ( termed here extra-legal) to formal justice in what was not in fact a sequence so much as a succession of overlapping waves. This interaction between social non-legal control, extra- legal social control and formal legal control is a complex relationship. The components interact and interrelate. Non-legal Social Control Non-legal social control has rules and sanctions which can be viewed as the etiquette of the setting (Black, 1976:36). It derives its force from a desire of persons to belong to a group, and to retain the advantages of membership then and in the future. Rule violation can drive members into exile; sanctions can drive members mad. 3 Non-legal social control works very well upon persons engaged in longterm and dependent relationships. It works very poorly when strangers are involved, persons with no special stake in the community or con- cern for the community's perception of them. It works very poorly when the arbiters of etiquette are called into question or when once cohesive societies lose their cohesion (Conn and Hippler, 1973). Extra-Legal Control The village council has been the historical vehicle for extra-legal activity in village Alaska (Conn and Hippler, 1975). Extra-legal process binds and draws upon both non-legal social control and legal authority but in fact has a separate identity. Extra-legal process institutionalizes in a demi-legal fashion, non-legal social control. It collects and focuses social pressure upon recalcitrant members and "educates" strangers (or persons with very limited knowledge of or stake in village opinion). It often "legalizes" social pressure by means of threats or enforcement of fines or other legal sanctions (Conn and Hippler, 1974). Extra-legal process also draws upon and controls formal legal process to the extent that it determines when formal intervention should occur. It is rein- forced by formal legal process in an unofficial manner when it is granted the authority to accomplish a variety of sublegal tasks or to report formal law violations. This role has the effect of extending the reach of official law into places and circumstances where it cannot or will not reach on its own. What the extra- legal authority receives in ex change for this responsibility is a kind of derivative power which it can direct to other less clearly authorized tasks (Conn, 1976:217-24). - 2- Extra-legal authority brokers social control and law and packages both into a new form. That form and its role is highly changeable because it is most dependent upon the forces and demands of non-legal social control and the forces and demands of state law givers. Extra-legal authority is the dynamic force which "makes law happen" in pla- ces where neither social control nor formal law can or will dominate the lives of the people involved. It is most susceptible to changing needs, but it is also most fragile of the three named forces which make up legal culture in village Alaska. Formal law has power beyond the comprehension of its own purveyors to drive extra-legal authority from its place in the center of legal culture. It can also weaken extra-legal authority by inaction when that same authority requests intervention. Formal law must not be either too strong or too weak in its asso- ciation with extra-legal authority. It must allow extra-legal authority to guide it in this respect. It can also displace without replacing extra-legal institutions which have institutionalized rules which are not legal and which have proffered the desired approaches to problem solving and dispute resolution be they legal or extralegal. Such is the case in the village of P where the introduction of more formal law now equals less legal process. The western Alaska Eskimo village of P, 40 miles from town, has every legal resource presently obtainable by rural villages. It has a resident part-time magistrate to handle misdemeanors. Its two cell lockup and police station houses the office of a state trooper constable, a Village Public Safety Officer (VPSO), and a village policeman.4 Town-based services include a trooper contingent, a superior court judge, a public defender, a district attorney, a legal services attorney and youth serv- ices officer. -3- P, along with about sixty other villages, has adopted a state local option law which prohibits importation or sale of alcoholic beverages. In 1975 I surveyed the same village justice system. P had a magistrate then as now. The difference was that eight years ago she was hiding from her intoxi- cated husband. One of its local village police had burned down his own home during a drinking bout. The other was drunk during our visit. The magistrate and police then operated out of a modular court and lockup facility (a trailer) barged up the P river by the court system. The magistrate had stacks of uno- pened legal materials in her office. In town, the trooper contingent was half of its present composition (two instead of four). The town had a magistrate, but no lawyers other than a legal services attorney. The town had an Alaska Native correctional aide for both juveniles and adults. Today there is more law available to P if law is the accumulation of law givers or formal legal resources. The problem of "arresting one's brother," often voiced as the reason why hiring local residents has been difficult for state justice agencies, had been obviated by hiring transient figures, both Native and non-Native. While village policeman, the town-based youth services aide and the magistrate are Alaska Natives, the village policeman and magistrate are from other villages. Other figures are non-Natives and are from other places. P has a magistrate. One hundred and thirty-five other villages lack any state-appointed judicial officer. P has a VPSO. At least eighty villages lack a VSPO and must hire and pay their own police. P has a trooper constable. Only a very few villages have trooper constables, P has changed in other ways.
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